Appeals court also blocks proposed Arizona copper mine

13th May 2022 By: Mariaan Webb - Creamer Media Senior Deputy Editor Online

The US Court of Appeals for the Ninth Circuit on Thursday declined to overturn a 2019 decision that blocked the development of Hudbay Minerals’ planned Rosemont openpit copper mine, in Arizona.

In a split decision, the court agreed with the District Court of Arizona’s ruling that the US Forest Service relied on incorrect assumptions regarding its legal authority and the validity of Rosemont’s unpatented mining claims in the issuance of the final environmental impact statement.

Writing for the panel’s majority, Circuit Judge William Fletcher said that no one disputed that Rosemont had valid mining rights on the land where it planned to dig the 3 000-feet deep by 6 500-feet wide openit. However, the 1.9-billion tons of waste rock that the company planned to dump on 2 447 acres of National Forest land was an issue.

When operations cease after 20 to 25 years, waste rock on the 2 447 acres would be 700 feet deep and would occupy the land in perpetuity, Fletcher said.

The US Forest Service approved Rosemont’s mining plan of operations (MPO) on two separate grounds. Firstly, the service concluded that Section 612 of the Surface Resources and Multiple Use Act of 1995 gives Rosemont the right to dump its waste rock on open National Forest Land, without regard to whether it has any mining rights on that land, as a “use reasonably incident” to its operations at the mine pit. Secondly, the service assumed that under the Mining Law of 1872, Rosemont has valid mining claims on the 2 447 acres it proposes to occupy with its waste rock.

The district court held that neither grounds supports the Forest Service’s approval for Rosemont’s MPO. It held that Section 612 grants no rights beyond those granted by the Mining Law. It further held that there is no basis for the service’s assumption that Rosemont’s mining claims are valid under the Mining Law.

Indeed, base on a conclusion that there are no valuable minerals on the claims, the court held that the claims are actually invalid. The district court, therefore, concluded that the service acted arbitrarily and capriciously in approving the entirety of Rosemont’s MPO in its final EIS and record of decision.

"We affirm the district court,” said Fletcher.

He noted, however, that the Ninth Circuit did not rely, as the district court did, on a conclusion that no valuable minerals existed on the claims, but rather that the claims were invalid because no valuable minerals had been found on the claims.

Hudbay responded that it would review the decision, but stressed that it would continue to pursue its alternative plan to advance the adjacent Copper World project.

Earlier this week, Hudbay unveiled some initial plans for Copper World and Rosemont, stating that it soon-to-be-released preliminary economic assessment (PEA) would incorporate a two-phase mine plan. The first will be a standalone operation using Hudbay’s private land for processing infrastructure and contemplating mining portions of Copper World and Rosemont located on patented mining claims.

The first phase is expected to require only state and local permits and is expected to reflect a 15-year mine life. 

The second phase of the mine plan is expected to extend the mine life and incorporate an expansion onto federal lands to mine the entire Rosemont and Copper World deposits. The second phase of the mine plan would be subject to the federal permitting process.

“The company expects it will be able to pursue the federal permits within the constraints imposed by the decision, if any subsequent appeals are not successful,” Hudbay said.

The PEA would be published before the end of next month.